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Pulliam v. Mac

Court of Appeals of Iowa

April 5, 2017

DANNY MAC, Defendant-Appellant.

         Appeal from the Iowa District Court for Allamakee County, Barry S. Mueller, Magistrate (trial), and Stephanie C. Rattenborg, District Associate Judge (appeal).

         A towing company appeals from a judgment entered against it in a replevin action. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

          Patrick A. Ritter of Elwood, O'Donohoe, Braun, & White, LLP, West Union, for appellant.

          James Burns of Miller, Pearson, Gloe, Burns, Beatty & Parrish, P.L.C., Decorah, for appellee.

          Considered by Potterfield, P.J., and Doyle and Tabor, JJ.

          DOYLE, Judge.

         The unwanted tow of a thirteen-year-old van set off a bizarre series of events that spawned a lawsuit, an appeal to the district court, a grant of discretionary review by our supreme court, and finally, transfer to this court. Defendant towing company Danny Macs[1] appeals from a judgment entered against it in a replevin action brought by the owner of the van. We affirm in part, reverse in part, and remand with directions.

         I. Background Facts and Proceedings.

         As best as we can glean from conflicting testimony, the salient facts are as follows. During the early morning hours of June 23, 2013, an unprecedented flood inundated Waukon. Plaintiff Bianca Pulliam was living in a downtown apartment above The Standard newspaper offices at the time. She was awakened when a neighbor knocked on her door and told her to get up because vehicles were being towed from the building's parking lot. Pulliam's van, a 2000 Pontiac Montana purchased for $1500 a few months earlier, was parked in the lot behind the building in a space authorized for parking by tenants of the building.

         Pulliam went down to investigate. Her van had not yet been towed. When she attempted to get in the van to move it she was told by a woman standing in front of the van, [2] "No, we can't allow you to start-allow you to start the vehicle up." Pulliam said she would move the van, but she was told, "No we can't allow you to start 'em up due to the water will get in your engine. But we're moving them all out to the main street for cleanup, until we clean up the parking lot." She was told that she could pick up the van on the main street. Pulliam's van was then towed. Pulliam went back to her apartment to change her clothes. About an hour later she went to the main street in search of her van. None of the vehicles from the building's parking lot were there. She called the police, and not knowing the identity of the company that towed her van, she called several towing companies and was eventually informed her van was at Wilken Auto Salvage (Wilken's).

         Brian Burington, owner of Danny Macs, testified he had been called by the Allamakee County Sheriff's Office dispatch to remove vehicles from the back parking lot behind The Standard and downtown businesses because everything had been flooded there. "[T]hey wanted [all the vehicles] out of downtown for cleanup . . . they didn't want them sittin' downtown . . . creatin' any type of health hazard." Danny Macs took all the towed vehicles to a lot it was renting from Wilken's. Burington stated all the vehicles towed were charged $75, "and the first week they sat there we weren't going to charge any storage due to the circumstances."

         According to Pulliam, she went to the salvage yard to retrieve her van and was told she had to pay $175 for the tow.[3] Pulliam refused to pay the charge, and in any event, she did not have the money to pay it. She called the police to see if she could get the van back without paying the tow charge. That met with no success. A few weeks later, after she had raised the money to pay the tow charge, she was told the cost to retrieve her van had gone up because accrued storage fees had been tacked on.[4] Pulliam attempted to contact Waukon's mayor with no success. Eventually, a frustrated Pulliam went back to the salvage yard and saw that her van was outside of the yard's gate. Engaging in an act of self-help, she got in the van, started it up, and drove off. Unbeknownst to Pulliam, Danny Macs then reported the van as stolen. Shortly thereafter, she took the van to a Prairie du Chien automotive repair shop to have the flood damage repaired. The van was muddy and water had been in it. The battery was replaced, the gas tank was dropped, and the windshield wiper motors were replaced because of water damage. Pulliam did not have the money to pay for the $1600 in repairs, so the van sat at the shop until the end of 2013.

         Eventually Pulliam paid for the repairs and drove the van to Chicago for a weekend and then drove back Calmar, Iowa, where she was then living. After being pulled over by police, she was told that the van had been reported stolen. She exclaimed, "How? I'm the owner of the vehicle." She was told Danny Macs had reported it stolen. Up to this point, she had not known that it was Danny Macs that had towed her van to Wilken's. Burington testified "Allamakee Sheriff's Office dispatch called us and said Calmar [Police Department] had a van that was in the ditch and they got it out and they had it pulled over and it was the van-it was [Pulliam]'s van that he had over there." Burington was told that Pulliam was driving the van. Burington went to Calmar and picked up the van and brought it back to Waukon. The van then sat in a storage lot for the next year. By this time, Pulliam had moved back to Waukon.

         The sequence of the following events is as muddy as the Waukon flood waters but not critical to our analysis. According to Burington, about a year after the van was towed from Calmar, he received a phone call from Pulliam asking if

we had possession of her van and we told her we did but now she'd have, you know, extra towing costs due to us going over to Calmar and bringing it back.[5] And then with the prior $75 charge from before, you know, that would all have to be paid and-and then at that time, you know, she didn't have the money for anything and she didn't feel it was right that it got towed in the first place and that's kind of where it got left off then.

         In January 2015, Danny Macs sent a letter to Pulliam informing her that her balance was "seriously delinquent." In lieu of a cash payment, Danny Macs offered to accept title to the van as a settlement on the balance owed.[6] A February 4, 2015, letter to Pulliam from Danny Macs stated: "Per the phone conversation you had stated to dispose of the vehicle in lieu of the tow bill and storage fees from June 2013."[7] The letter requested Pulliam to either sign the vehicle's title over or sign a form giving Danny Macs permission to dispose of the vehicle.

         At some point, a Waukon police office came to Pulliam's home and told her that Danny Macs "was giving them trouble about the vehicle been sittin' there so long and they want to get rid of it, " and "[t]here was a paper for [her] to sign [her] title over for [Danny Macs] to dispose of the vehicle." Pulliam said she would do no such thing because the van should not have been towed in the first place. The officer told her, "Well, I'm the one [who] authorized for the vehicles to be moved to the main street for cleanup." After Pulliam told the officer Wilken's had tried to charge her to get the van back, the officer responded, "They tried to charge you to get your vehicle back?" Pulliam said, "Yes, " and the officer told her to hold on and give him "about an hour and [he'd] be back." When he came back, the officer told Pulliam the towing company was not happy, but she could have her van back if she just paid the tow charge. He suggested that before paying the charge, she should see if the van would start because it had been sitting for so long.

         Pulliam called Wilken's and said she wanted to come out to see if the van would run and to "try to pay [her] vehicle." She was told no one was there at the time to take her to her van, and she was asked to call back on Thursday or Friday. She called back on Thursday and was told Wilken's no longer had the van because Danny Macs had picked it up.[8] Pulliam called Danny Macs and was told the van was on Burington's property near his house. Pulliam went to the Burington home and spoke with Burington. He told her, "Well, I had your vehicle here two days ago. When I returned home, I seen tire tracks in the mud and the vehicle is gone. Someone stole it." At the trial Burington was asked if he knew where the van was. He said:

Wish I did 'cause it-We had it up until the last time I talked to [Pulliam] and then-then she had said that Wilken's had given our information to her-to her as to where the vehicle was. And then it was maybe three, maybe ...

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